IN THE COURT OF APPEALS OF IOWA
No. 13

- 1764 Filed June 25, 2014 STATE OF IOWA, Plaintiff

- Appellee,

vs.
MARK AARON THOMPSON, Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, Odell G. McGhee II , District Associate Judge.

A defendant challenges the probationary sent ence entered on his
conviction f or possession of crack cocaine. AFFIRMED.

Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles, Gribble & Gentry, L.L.P., Des Moines, for appellant. Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney General, John Sarcone, Coun ty Attorney, and Andrea Petrovich, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.2

TABOR, J. This appeal joins the “myriad challenges” that arise when defendants are sentenced without a record of the reasons for the chosen punishment. 1 Mark Aaron Thompson asks to be resentenced because the judge d id not check any of
the fifteen available boxes on the sentencing form to show which factors were “most significant” in determining his particular senten ce. Citing State v. Mudra , 532 N.W.2d 765 , 766

- 67 (Iowa 1995), the State contends Thompson waived his claim by fail ing to provide this court with a record of the sentencing hearing affirmatively disclosing a violation of Iowa Rule of Criminal Procedure 2. 23(3)(d).
B eing bound by Mudra , we affirm.
I. Background Facts and Proceedings On July 11, 2013, Des Moines police officers stopped T hompson for driving while barred. During the traffic stop, they found a rock of crack cocaine on the driver’s seat. By tri al information filed on August 19, 2013, t he Polk County Attorney charged Thompson with possession of a controlled substance, second offense, an aggravated misdemeanor , in violation of Iowa Code section 124.401(5) (2013)

. He entered a written guilty plea on September 26, 2013. As part of the plea deal, the prosecution agreed to recommend a sentence of sixty days in jail , while Thompson was free to ask for a sentence of thirty days or le ss. N either the State nor Thompson sought additional time on probation. On October 10, 2013,

1 See State v. Alloway

, 707 N.W.2d 582, 587 (Iowa 2006), overruled on other grounds by State v. Johnson , 784 N.W.2d 192 (Iowa 2010).3

t he cou rt issued an order accepting Thompson’s guilty plea and setting sentencing. According to the written sentencing order, Thompson appeared for sentencing o n October 31, 2013

. A box was checked on the sentencing orde r indicating: “Defendant waived reporting and record of the Sentencing Hearing.” The sentencing order also contained the following paragraph:

On inquiry, no legal cause has been shown to pr event sentencing on this date. Defendant was given an opportunity to speak in miti gation of the sentence. The following sentence is based on all of th e available SENTENCING CONSIDERATIONS set out in Iowa Code S ection 907.5. The court finds th e following facto rs the most significant in determ ining this particular sentenc e:

□ The nature and circumstances of the crime □ Protection of the public from fu rther offenses □ Defendant’ s criminal history □ Defendant’ s substance abuse history □ Defendant’s propensity for further criminal acts □ Statutory sentence re qu irements □ Defendant’s statement □ Defendant’s family circumstances □ Maximum opportunity for rehabilitation □ Victim impact state ment □ Defendant’ s age and character □ Defend ant’s me ntal health history □ Defendant’ s employment □ The Plea Agreeme nt □ ___________________________ The district court did not check any of the boxes. T he court sentenced Thompson to two years in prison, with all but fifteen days suspended, a $625 fine, and two years of probation

. Unhappy with the probationary period, Thompson appeals his sentence.4

II. Standard of Review We review criminal sentences and compliance with Iowa Rule of Criminal
Procedure 2.23(3)(d) for correction of legal error. State v. Jason , 779 N.W.2d 66,
72 (Iowa C t. App. 2009) . We “ will not reverse the decision of the district court absent an abuse of discretion or some defec t in the sentencing procedure.” State v. Formaro , 6 38 N.W.2d 720, 724 (Iowa 2002). We will not find an abuse of discretion unless the defen dant establishes the sentencing court exercised its discretion for reasons clearly untenable or to a n extent clearly unreasonable. State v. Buck

, 275 N.W.2d 194, 195 ( Iowa 1979)

. III. Analysis
A. Reasons for Sentence Thompson first argues the district court erred in failing to give r eason s for imposing fifteen days in jail and two years probation. See Iowa R. Cr im . P. 2.23(3)(d) (“The court shall state on the record its reason for selecting the particular sentence.”)

. He acknowledg es “on the record” can mean delivering

reasons either i n open court or in a written judgment entry. See State v. Jones , 817 N.W.2d 11, 24 (Iowa 2012). But he contends because he waived court reporting and record of the sentencing hearing, the district court violated the rule by leaving the check boxes blank on the written sentencing order

. 2

2 Thompson does not acknowledge Mudra

. Instead he asserts his case is “indistinguishable” from our court’s recent unpublished decision in State v. Jac kson , No. 12

- 0861, 2013 WL 1223846 , at *1

- 2 (Iowa Ct. App. Mar. 27, 2013). His assertion is incorrect. Jackson waived not only his right to “have a court reporter make a verb atim record” of the proceedings but also his “right to speak to the judge about punishment and sentencing.” Id

. at *1. It was not clear that Jackson had an exchange with the sentencing judge. Id

. at *2. If the defendant did not appear for a sentencing hearing,5

The State counters that Thompson did not preserve error on his sentencing claim because he waiv ed court reporting of the sentencing hearing and did not otherwise tr y to recreate the record for appellate review. The State
relies on Mudra where the supreme court reject ed a defendant’s claim the district court abused its discretion in failing to state reasons on the record. See Mudra , 532 N.W.2d at 766

– 67 . The suprem e court said it was unclear whether the district court provided reasons for Mudra’s sentence during the proceedings and declined to speculate as to what took p lace. Id . at 767. The court explained
M udra “ voluntarily waived transcription and then, having decided to appeal, made no attempt to make a record of the district court proceedings by either a supplemental statement of proceedings under Iowa Rule of Appellate Procedure 10(c) [now r ule 6. 806] or by creating a bill of exceptions under Iowa Rule of Cri minal Procedure 23.1 [now rule 2.25 (1)]

. ” Id

. The court concluded the lack of a record on appeal was “Mudra’s own doing

. ” Id

. The State also cites to Alloway , where the supreme court followed Mudra , finding the defendant could not show an abuse of the sentencing court’s
discretion when he failed to submit a record for appeal

. See Alloway , 707 N.W.2d at 586

. Alloway parsed Iowa Rule of Criminal Procedure 2.23(3)(d) into two separate requirements: (1) that the court state its reasons and (2) that the court make a record of those reasons. Id . at 584. But the supreme court

there was no possibility the district court satisfied rule 2.23(3)(d) b y orally giving reasons for the sentence. The boilerplate reason given in Jackson’s written sentencing form was inadequate to satisfy rule 2.23(3)(d), so we reversed and remanded. See State v. Cooper , 403 N.W.2d 800, 802 (Iowa Ct. App. 1987) (case remand ed for resentencing because record was insufficient for review when no transcript was made and district court stated insufficient reason for sentence in the sentencing order).6

recognized making a sentencing record is “not solely within the province of the district court.” Id. at 586. The supreme court reiterated the two rules cited in Mudra allow a defen dant to recreate the record of a sentencing hearing where court reporting was waived. Id

. The Alloway decision ultimately explained: “ As in Mudra, we will not permit a defendant to raise an issue without attempting to give us a record upon which we can d ecide the issue. ” Id

. In the instant case , the written order stated that Thompson appear ed for sentencing and was given the opportunity to speak in mitigation. As the supreme
court expressed in Mudra , we cannot speculate about what else happened at
th at proceeding. Under existing precedent, it was Thompson’s obligation to produce a record supporting his claim that the sentencing court gave no reasons. Showing on appeal that the sentencing court skipped the check boxes on the written order was only half the battle. Thompson also needed to submit a record showing the sentencing court failed to state any reasons at the hearing. Having waived court reporting and transcription of the hearing, Thompson’s only options

were to prepar e a statement of the proce edings under Iowa Rule of Appellate
Procedure 6.806(1) or a bill of exceptions under Iowa Rule of Criminal Procedure
2.25. See Alloway

, 707 N.W.2d at 586 ; Mudra , 532 N.W.2d at 767. Not having pursued either of these options, he waived his appellate claim that the court violated Iowa Rule of Criminal Procedure 2.23(3)(d).
While our decision is consistent with the holdings in Mudra and Alloway ,
we realize the circumstances here do no t represent best practices. The district court knew Thompson waived reporting and record of the sentencing hearing, yet7

overlooked the opportun ity to memorialize the reason it decided to place the defendant on probation for two years

— when doing so would have required no more than c hecking the appropriate box on the form.
In Mudra , the court stated: “ We believe, and strongly advise, that the better practice for a district court in situations where there is no transcription of the proceedings is to always state sufficient reasons in the sentencing order. ”
532 N.W.2d at 767

. Ten years later

— frustrated by a string of resentencing cases which resulted in “ a waste of judicial time and resources”

— the Alloway court was motivated to say:

[W] e again urge district courts to fastidiously follow the reason - for

- the

- sentence requirements, absent a clear record supporting a waiver of the twin requirements, to head off the myriad challenges and claims that seem to arise when defendants are sentenced to incarceration without a record of the reas ons for the sentence. 707 N.W.2d at 587. Now, eight years after Alloway , we still see a steady stream of appeals challenging the lack of a record showing the reasons for sentencing. 3 Many of

3 See, e. g. , State v. Myrick , No. 13

- 1054, 2014 WL 955907 , at *1 (Iowa Ct. App. Mar. 12, 2014); State v. Fister

, No. 13

- 0977, 2014 WL 957437, at *1 (Iowa Ct. App. Mar. 12, 2014); State v. Turner , No. 13

- 0181, 2013 WL 5745837, at *2 (Iowa Ct. App. Oct. 23, 2013); Jackson , 2013 WL 1223846 , at *1; State v. McDowell , No. 12

- 0377, 2013 WL 104824, at *1 n.1 (Iowa Ct. App. Jan. 9, 2013); State v. Spurgeon , No. 11

- 1264, 2012 WL 2122465, at *2 (Iowa Ct. App. June 13, 2012); State v. Hoon , No. 10

- 1551, 2011 WL 2041581, at *1 (Iowa Ct. App. May 25, 2011); State v. Garcia , N o. 09

- 1691, 2010 WL 5394833, at *1 (Iowa Ct. App. Dec. 22, 2010); Addison v. State , No. 09

- 1109, 2010 WL 4140439, at *4

- 5 (Iowa Ct. App. Oct. 20, 2010); State v. Strickland , No. 10

- 0494, 2010 WL 3503445, at *1

- 2 (Iowa Ct. App. Sept. 9, 2010); State v. Wise cup , No. 09

- 0469, 2009 WL 3337638, at *2 (Iowa Ct App. Oct. 7, 2009); State v. Bean , No. 05

- 1799, 2006 WL 1229998, at *1 (Iowa Ct. App. Apr. 26, 2006).8

these appeals originate in large urban counties with busy crim inal dockets reducing the likelihood the sentencing judge or participating attorneys could realistically recall if reasons were given at an unreported hearing for purposes of recreating the record under Iowa Rule of Criminal Procedure r ule 6.806 o r Iowa Ru le of Appellate Procedure 2.25(1)

. Given the recurring issue, it m ay be prudent for our supreme court to
revisit Mudra and interpret “on the record” in Iowa Rule of Criminal Procedure 2.23(3)(d) to require reasons for sentencing be set out in a written order if the sentencing hearing is not reported. See State v. Bruce , 795 N.W.2d 1, 3 (Iowa 2011) (entertaining possibility of revisiting interpretation of language in criminal procedure rules). But un less and until th e supreme court decides to re consider its earlier cases, we are bound by their holding s

. B. Sentence Not Condition of Plea Agreement In his second assignment of error, Thompson argues he is entitled to resentencing because the district court failed to “embody in the judgment and sentence the disposition provided for in the plea agreement.” We reject this claim. The district court accepted Thompson’s plea without binding itself to any particular sentence. Thompson’s petition to plead g uilty acknowledge d “[t]he Court is not bound by the plea agreement and may impose the maximum sentence as allowed by law.” The district court did not commit error in issuing its
sentence. AFFIRMED.